Mountain States Telephone & Telegraph Co. v. Animas Mosquito Control District , 152 Colo. 73 ( 1963 )
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Mr. Justice McWilliams dissenting:
The majority recognize the general rule that a court will not inquire into the constitutionality of a statute on its own motion and will not consider such unless it be duly raised and insisted upon by a proper party. But even after coming face to face with this salutary and long standing rule, the majority come to the conclusion that the instant case justifies a departure therefrom. I hold to the contrary and believe we should adhere to the general rule and under the circumstances of this case should not pass on the constitutionality of C.R.S. ’53, 89-3-3.
The issue as to the constitutionality of C.R.S. ’53, 89-3-3 was not raised by the disputants either here or in the trial court. Had this statute been challenged in the trial court, each party would under that circum
*89 stance have been afforded the opportunity to make such record in connection therewith as it desired, including the presentation of evidence, if such there be, tending to show the reasonableness and non-discriminatory character of this statute, viewed from the standpoint of its practical effect when in actual operation. By raising this constitutional issue for the first time in this Court and on our own motion, however, the majority have effectively precluded both parties from this opportunity and in so doing have elected to test the statute in a vacuum.I am authorized to state that Mr. Justice Pringle joins in this dissent.
Document Info
Docket Number: 19812
Citation Numbers: 380 P.2d 560, 152 Colo. 73, 1963 Colo. LEXIS 379
Judges: Hall, McWilliams
Filed Date: 4/8/1963
Precedential Status: Precedential
Modified Date: 11/3/2024